BNUMBER: B-261517
DATE: December 26, 1995
TITLE: Philip M. Brey-Retroactive Temporary Promotion-Back
Pay
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Matter of:Philip M. Brey-Retroactive Temporary Promotion-Back Pay
File: B-261517
Date: December 26, 1995
DIGEST
Record is insufficient to support claim by former assistant foreman at
the Government Printing Office that he was detailed to the
higher-graded foreman's position for an extended period and,
therefore, was entitled under an agency instruction to a temporary
promotion and corresponding increase in pay. The claimant failed to
meet his burden of proving that he was detailed to, or performed all
the duties of, the higher-graded position where the record indicates
that (1) the claimant's job description required him to perform the
duties of the foreman in the foreman's absence; and (2) the foreman,
although detailed to another work unit, continued to supervise the
claimant and retained overall responsibility for the claimant's work
unit.
DECISION
Mr. Philip M. Brey, a former employee of the Government Printing
Office (GPO), appeals Claims Group settlement Z-2869421, Nov. 29,
1994, denying his claim for additional pay for the period of January
12, 1987, to October 20, 1992, during which period, Mr. Brey asserts,
the agency detailed him to a higher position entitling him to more
pay. We conclude that the duties performed by Mr. Brey during this
period did not constitute a detail to the higher position.
Accordingly, we affirm the settlement.
BACKGROUND
During the period of time in question, Mr. Brey's official job title
was Assistant Foreman, Video Keyboard Section (VKS), Shift 1,
Electronic Photocomposition Division. On January 12, 1987, the agency
detailed the VKS Foreman, Mr. Charles E. Dailey, to another section
within the same division.
Through counsel, Mr. Brey asserts that the division superintendent
told him that he, Mr. Brey, was in charge of the VKS until further
notice. He states that he performed all of the duties of the foreman,
including counseling, disciplining, appraising, training, and
otherwise supervising the VKS employees; creating training procedures;
developing performance plans; making selections for vacant and new
positions; and scheduling employee work. To support his claim, Mr.
Brey submitted a number of statements from co-workers to the effect
that he performed all the duties of the foreman. Mr. Brey also
included an affidavit from Mr. Dailey stating that Mr. Brey was
responsible for the day-to-day operations of the VKS and that he
supervised Mr. Brey's performance. Mr. Dailey also stated that "Mr.
Brey's duties during that period of time were identical to the duties
I performed as the Foreman of the VKS."
The agency acknowledges that Mr. Brey assumed direction of most of the
operations of the VKS in Mr. Dailey's absence, but disputes that this
constituted a detail to the foreman's position.[1] The agency notes
that the position description for the assistant foreman states that
the assistant "[a]ssumes the duties of the Foreman in his/her
absence." The agency also notes that Mr. Dailey continued to
supervise Mr. Brey's performance. Finally, the agency points to a
statement in the record from the division superintendent that when Mr.
Dailey was detailed to another section, "it was my intent that Mr.
Brey assume the function of assigning work and handling the details of
the section, but that Mr. Dailey would still remain in overall
charge."
OPINION
To establish a claim for backpay based on a detail to a higher-graded
position, a claimant must show that (1) an agency regulation or
agreement requires a temporary promotion for such a detail; and (2) he
or she actually was detailed to a higher-graded position.
Turner-Caldwell III, 61 Comp. Gen. 408 (1982); Albert C. Beachley and
Robert S. Davis, 61 Comp. Gen. 403 (1982).
In this case, the agency concedes the first point. GPO Instruction
615.1B, Regulations Governing the Detail of Employees, Feb. 2, 1976,
which still is in effect, provides that employees detailed to higher
positions for more than 30 days should be given temporary promotions.
In Howard A. Morrison, B-210917, Aug. 10, 1983, we concluded that this
Instruction establishes a nondiscretionary agency policy and that the
failure to comply with the Instruction may justify an award of backpay
under the Back Pay Act, 5 U.S.C. 5596.
With respect to the second point, the claimant has the burden of
proving that he or she was detailed to and performed the duties of a
higher-graded position. See, e.g., Dennis F. Morgan, B-203926, Sept.
22, 1981. This is a factual determination, and where the agency's
determination is reasonable, we will not substitute our judgment for
that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15,
1982.
In a submission to our Office dated April 21, 1994, the General
Counsel of GPO explained the basis for the agency's determination in
Mr. Brey's case as follows:
"Mr. Dailey remained the Foreman of VKS, although with less of a
day-to-day "hands-on" role. In other words, Mr. Brey was not
"detailed" into a higher-level position, he was asked to perform
a broader range of functions which were consistent with his
position description, but the level of responsibility remained
unchanged."
We agree with the agency's determination. Requiring an employee to
assume and perform the duties of another position on an acting basis,
when specifically required by that employee's own position
description, fundamentally does not constitute a detail to the other
position. Instead, the employee is engaged in carrying out
responsibilities within the scope of his or her regular position even
if the employee continues to perform in an acting capacity for an
extended period. See our decision of today in Martin Kirchhausen,
B-261661. As noted above, Mr. Brey's position description as
assistant foreman specifically required him to perform the duties of
the foreman on an acting basis.
Further, even if Mr. Brey's performance of the foreman's duties could
be regarded as a detail, our decisions allowing backpay require a
showing that the claimant performed all of the duties of the
higher-graded position. See, e.g., Dennis F. Morgan, B-203926, Sept.
22, 1981; Talmadge S. King, B-202106, July 20, 1981. This is not the
case here since the Foreman, Mr. Dailey, continued to supervise Mr.
Brey and retained overall responsibility for the VKS work unit.
Accordingly, the settlement denying Mr. Brey's claim is affirmed.
/s/Seymour Efros
forRobert P. Murphy
General Counsel
1. Preliminarily, the agency contends that Mr. Brey's claim should be
dismissed because it is time barred by virtue of a GPO regulation that
supersedes the general 6-year limitation period for submitting a claim
to our Office under 31 U.S.C. 3702(b). We disagree, since the
regulation relied upon by the agency expired by its terms effective
December 31, 1984, and the agency acknowledges that it has not been
replaced.